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03/04/94 BLAIR LEWIS v. JASPER COUNTY COMMUNITY

March 4, 1994

BLAIR LEWIS, A MINOR, PLAINTIFF-APPELLANT,
v.
JASPER COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 1, AND REGIONAL BOARD OF SCHOOL TRUSTEES OF CLAY, RICHLAND, AND JASPER COUNTIES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Jasper County. No. 92-L-15. Honorable William R. Todd, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Chapman, Welch, Rarick

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Plaintiff, Blair Lewis, filed a complaint against defendants, Jasper County Community Unit School District No. 1 (the School District) and the Regional Board of School Trustees of Clay, Richland, and Jasper Counties, for injuries she sustained after falling against a pumphouse on the school playground, during school hours. Plaintiff alleged both negligence and willful and wanton conduct. This court granted plaintiff leave to appeal from an order which dismissed the negligence counts of the complaint under the immunity provisions of section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3-106). We affirm.

Plaintiff's principal argument is that the school district is not immune from liability for ordinary negligence under section 3-106 of the Tort Immunity Act because of the case law construing section 24-24 of the School Code (Ill. Rev. Stat. 1991, ch. 122, par. 24-24). Section 24-24 of the School Code provides parental immunity to certain school personnel and school districts from negligence when the cause of action is premised on negligent supervision. Plaintiff relies on Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467, 588 N.E.2d 1185, 167 Ill. Dec. 1055, and Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, 15 Ill. Dec. 639, which held that the school districts did not have immunity under section 24-24 of the School Code for the alleged negligent failure to provide safe equipment on school premises. Plaintiff contends that these cases and their construction of section 24-24 have established a public policy against relaxing a school district's obligation to supply safe equipment, buildings, and playgrounds. (See Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467, 588 N.E.2d 1185, 167 Ill. Dec. 1055.) Plaintiff argues that the same policy should apply to cases construing section 3-106 of the Tort Immunity Act and that to hold otherwise would nullify the holdings in Sidwell, Gerrity, and appellate court opinions which have held school districts liable for ordinary negligence for failure to provide safe equipment on school premises. See Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 539 N.E.2d 246, 131 Ill. Dec. 893; Jastram v. Lake Villa School District 41 (1989), 192 Ill. App. 3d 599, 549 N.E.2d 9, 139 Ill. Dec. 686; and Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, 510 N.E.2d 595, 109 Ill. Dec. 727.

Plaintiff's reliance on Illinois courts' application of section 24-24 of the School Code is misplaced. The supreme court cases that the plaintiff relies upon address only the application of section 24-24. (See Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467, 588 N.E.2d 1185, 167 Ill. Dec. 1055; see also Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, 15 Ill. Dec. 639.) Sidwell explicitly rejected the contention that its holding on section 24-24 governed section 3-106:

"Whether section 3-106 itself would provide immunity to the school district * * * is another matter. Because that statute was not pleaded as a defense in the trial court, the appellate court or here, we need not determine whether section 3-106 would apply in this case." ( Sidwell, 146 Ill. 2d at 474-75, 588 N.E.2d at 1189.)

In Kobylanski v. Chicago Board of Education, the court noted that immunity under the School Code did not derive from immunity in the Tort Immunity Act ( Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705), thus indicating that the two statutes should be interpreted independently of one another. That the two statutes should be interpreted separately was also recognized by this court in Keller v. Board of Education (1978), 68 Ill. App. 3d 7, 385 N.E.2d 785, 24 Ill. Dec. 644. Finally, Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 539 N.E.2d 246, 131 Ill. Dec. 893, explicitly held that the School Code and the Tort Immunity Act are to be interpreted independently of one another. We agree.

To apply the Sidwell court's reasoning and interpretation of section 24-24 of the School Code to section 3-106 of the Tort Immunity Act would be to ignore the clear language of section 3-106, which provides:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings, or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful or wanton conduct proximately causing such injury." Ill. Rev. Stat. 1989, ch. 85, par. 3-106.

Section 1-206 of the Tort Immunity Act defines "local public entity" to include school districts; and section 3-101 defines "public property" as "real or personal property owned or leased by a local public entity" (Ill. Rev. Stat. 1989, ch. 85, pars. 1-206, 3-101). Clearly, in light of the definitions provided by the legislature, section 3-106 immunizes the School District from injuries occurring on school property used for recreational purposes, absent willful or wanton conduct by the school district. See Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302, 136 Ill. Dec. 527.

This interpretation of section 3-106 is in harmony with its purpose, which is to encourage the development and maintenance of public parks, playgrounds, and similar recreation areas. ( Jackson v. Board of Education (1982), 109 Ill. App. 3d 716, 441 N.E.2d 120, 65 Ill. Dec. 328.) In Jackson, the plaintiff was injured while playing on swings located on a school playground. Not unlike this plaintiff, the plaintiff in Jackson relied upon the case of Gerrity v. Beatty and claimed that section 3-106 was inapplicable in that a public entity should be liable for ordinary negligence where the liability is based on the condition of property used as a playground. The court disagreed:

"Plaintiff's argument that a public entity should be liable for ordinary negligence where the liability is based on the condition of property used as a playground was resolved against the plaintiffs by the legislature when it enacted ...


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